«Gender Identity» undermines feminism

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Recent debates on transgender inclusion in the UK and in the US have presented law with new challenges that will inevitably become   relevant for many other Western countries as well.  The proposed expansion of the category of «woman» to encompass those self-identifying as women, without the requirement of physical conformity, has been justified by arguments ranging across a spectrum from liberal sympathy for people who feel they are trapped in the wrong body, to acceptance that individuals may have been misidentified at birth and are in fact the opposite sex from the one they were originally «assigned», as the jargon puts it.  There is an intellectual gulf between these two views.  The one accepts that sex is biologically determined, but that it may be appropriate for the law to treat a person as a member of the other sex if that is what they need in order to flourish as an individual.  The other disputes the idea that sex is biologically determined.  It suggests that sex is decided by the way you feel – by the brain rather than the body.

The first view underpins the reasoning behind laws that seek to allow people to change their legal sex. For example, the Gender Recognition Act 2004 (GRA) in the UK allows the law to treat a person as someone of the other sex if they have obtained a Gender Recognition Certificate (GRC).  Possession of such a certificate allows the person to change their statement of sex on all official documentation such as birth certificate, driving licence and passport.  To obtain a GRC, a person must be at least 18, have lived as if a member of the opposite sex for two years, to intend to remain permanently in that gender, and to have a medical diagnosis of gender dysphoria.  Surgical modification of the body is not required.  The GRA creates a legal fiction whereby the person is thenceforth treated as a member of the opposite sex from their birth sex for many but not all purposes.  Legal fictions exist in areas where something known not to be true in reality is treated as truth for the purposes of law: for example, the personhood of companies.

Nevertheless, for some purposes, they retain characteristics of their birth sex that distinguish them from persons born into the acquired sex.  One obvious distinction is medical: a transgender woman’s needs will not map on to the gynaecological or obstetrics provision in a hospital, while a transman’s might.  The law also recognises some situations where the person with a GRC will not be encompassed within the new sex. The Equality Act 2010 allows for «sex» as well as «gender re-assignment» to be protected characteristics in order to preserve some spaces, such as changing-rooms and refuges, for those with female (or male) bodies alone.  This is a balancing exercise intended to meet the needs of those who claim other protected characteristics such as religion and in the interests of the social goal of women’s protection.

Sex and law

Those who argue that transwomen are women, rather than simply that they should be treated as women, want to do away with «sex» and «gender re-assignment» as separate protected characteristics and replace them with the single characteristic of «gender identity».  They have also campaigned to remove the requirement to obtain a medical diagnosis of «gender dysphoria» and treatment and to allow people simply to self-identify.  Those proposals were rejected by the British government in 2020.  Within the group advocating for such legal changes there are again different schools of thought.  One is that sex is, or should be, a matter of choice.  Chromosomes and genitals are irrelevant; you are the sex you claim to be.  The other agrees that chromosomes and genitals are not decisive in determining sex, but holds that sex is nevertheless innate: not a choice, but determined at birth – but not by biology.  Rather, sex is in the brain; one may be male or female (or non-binary) whatever one’s physical conformation.

Very few laws in the UK make any formal distinction between men and women today.  Where they do, it is always on physical (biological) grounds – for example, in respect of certain sex offences. But two hundred years ago, the situation was quite different.  When Victoria became queen in 1837, women were excluded from public life, higher education, the professions and the vote, and these exclusions, while rarely explicitly laid down in statute, were all confirmed in case law.  Anti-discrimination legislation was unknown, and notions of equality between the sexes not even considered.  While single women enjoyed the same rights as men in private law, on marriage their property passed to the husband, who took responsibility for all their legal transactions (a doctrine called coverture), became sole guardian of their children, and could restrain their wives – indeed, rape and assault them – without legal sanction.

The origins of the order of the sexes

We do not know how men came originally to dominate women in society and create these sex-based distinctions in law and practice but – given the near-ubiquity of this pattern across societies and eras – it is a fair guess that women’s reproductive function (and men’s desire to control it) was at the root. While few of us would regard reproduction as our primary purpose today, historically it was of the utmost importance across the social spectrum, from the aristocratic men who wished to pass their name and property down through legitimate descendants, to the rural workers who wanted their children to contribute labour to the family income. Whatever the cause of sex-based differentiation in law, it came to be justified on the basis that females give birth to babies and that, until relatively recently in human history, they have had little control over their fertility, so could potentially be spending most of their adult lives bearing and nurturing the next generation.  From this one difference, the social roles of males and females were laid down.  Prior to the Industrial Revolution, women and men worked together in cottage industries or on farms, both contributing to the family income.  With the separation of home and work after the Industrial Revolution, the rising middle class seized the chance to demonstrate its superiority to the workers left behind by barring women of their own class from the workplace so that they could dedicate themselves to their childbearing function.  Men became breadwinners, women homemakers, roles that have persisted in modified form until the present day.  Education was tailored to the sexes’ respective roles; and, in a circular argument, aptitudes and character traits were identified that predisposed each sex for its particular roles.  So, the argument went, because females bore children, they should rear them. Because childcare precluded going out to work, they should occupy themselves in the domestic sphere.  When domestic servants became difficult or impossible to find, middle-class women’s role was extended to encompass theirs: because they were at home anyway, they should take responsibility for housework as well.  Because they were caring for children anyway, they should also care for the husband.  Even when large numbers of married women started going out to work in the 1960s in the West, they still stayed responsible for childcare and housework.

That men and women enjoy a largely equal status in UK law today is due to the efforts of feminist campaigners who sought to separate the inevitability of the sexed body from the socially-imposed gender norms that had been built upon it.  By identifying and peeling back the layers of gendered norms and socialisation into those norms from their association with particular sexed bodies, feminists tried to remove the restrictions on women’s access to rights enjoyed by men as well as the mechanisms which gave men rights and power over women.  Thanks to the campaigns of first-wave feminists, restrictions on entry into higher education and the professions (including law) were lifted under the Sex Disqualification (Removal) Act 1919.  Second-wave feminists tackled the obstacles to women’s participation attributed to women’s biological role as mothers as well as their social role as homemakers, leading to the passing of the Sex Discrimination Act 1975 and the introduction of pregnancy and maternity protection.

Breaking out of gender roles

As we can see, in English law, as in the language generally, «sex» was the word used to describe the categories of male and female until the 1970s. «Gender» only appeared in English legislation (or anywhere) in reference to grammar.  But then second-wave feminists introduced the concept of «gender» to denote the social characteristics and roles associated with men and women, they did so because they realised that the first-wave struggle to separate the social aspects of being a woman from the biological ones was still far from complete. Ann Oakley explained, «A newborn baby is not only classified immediately by sex; it is also assigned a gender» – and from this assignment came the lifelong process of «socialisation» into one’s appropriately masculine or feminine role, to the point where it was difficult to distinguish what was innate and what was learned.  Second-wave feminists were also conscious of the power of naming a problem: it is from them that the English language acquired the concepts of «sexism» and «sexual harassment» and, with the naming, the possibility of describing our experience and being heard.  So, they named gender as the problem, and campaigned to get rid of it – to open all roles and ways of being to both men and women, and to destroy the concepts of masculinity and femininity.

As feminist theorising developed, «gender» was extended to describe the relationship between the sexes – a relationship of power, with men as the dominant sex and women the subordinate. In consequence of this new understanding, «Gender studies» courses replaced «Women’s Studies» courses, the aim being to explore the dynamic between the sexes rather than simply describing women’s experiences.

The final development was when «gender» came, by a sort of back-formation, to be used as a synonym for «sex» in the sense understood by earlier feminists – and by the law – that is, to refer to the state of being male or female, rather than to the specifically social aspects of being a man or woman. This usage was taken up by agencies aiming to tackle women’s inequality and subordination, as in the expressions «gender mainstreaming» and «gendered inequalities», and led to the word «gender» replacing «sex» on many forms and in expressions such as «gender pay gap». The effect of eliding sex and gender was to open the possibility of doing away with «sex» altogether, and with it the idea of there being any biological or essential foundation for sex difference.  If sex is only a social and cultural construction, as postmodern scholars claimed, then the body ceases to have any relevance.  Not only can the state of being biologically male or female not have any effect on definitions of «man» or «woman», but the first- and second-wave feminist insights into how man and women are constructed – by superimposing a socialisation process on to a sexed body, and by the interaction between these two parts to a life – are lost.

Protecting sex and the body

So, what is at stake in the proposed legal reforms around much of the Western world is not simply human rights for a small group of individuals who feel they were born into the wrong body.  It is the very definition of woman.  Replacing sex by a category of gender identity will obliterate the connexion between women’s oppression and our bodies, leaving us without a word for «adult human female» – and without a word, the concept itself is at risk of disappearing. For this reason, we need to keep the protected category of sex in order to safeguard female persons.

One reason why it is so often argued that «sex» is no longer needed as a protected category may be that people have forgotten, or never known, just what life was like for women before we had specific laws addressing women’s inferior position in society.  These people might argue that in England, women are equal now; we do not need sex-based protection.  This is not the case.  Women are not equal; they are routinely passed over for appointment, training or promotion because they might take time off, go part-time, or leave to have children; there is a substantial gender pay gap; and they are still arbitrarily dismissed or downgraded when they become pregnant. Women are still expected to do the lion’s share of childcare and, during Covid, home-schooling, with their consequent impact on their ability to pursue paid employment. Women are not even safe: levels of violence, harassment and abuse of women by men remain high. This inequality and this vulnerability have nothing to do with identity and everything to do with our bodies.  Feminists have fought long and hard for society to recognise our separate experiences, our separate history, in a world where only men’s experiences were considered worth recounting, worth remembering.  But every such attempt meets a backlash, and this attempt to remove «sex» from the law’s protection and replace it by ‘gender identity’ looks to us like just another example of that. Given the developments in the UK, it is of utmost importance that other countries take note – and remain attentive.